Scanlon-Thompson Coal Co. v. Lick Branch Coal Co.
| Decision Date | 16 February 1932 |
| Citation | 243 Ky. 100 |
| Parties | Scanlon-Thompson Coal Company v. Lick Branch Coal Company. Lick Branch Coal Company v. Scanlon-Thompson Coal Company. |
| Court | United States State Supreme Court — District of Kentucky |
2. Principal and Agent. — Finding that buyer's agent authorizedly received notice that coal was of inferior quality held supported.
3. Appeal and Error. — Mere preponderance of evidence or majority of witnesses favoring plaintiff does not warrant court in disturbing adverse verdict.
4. Sales. — Where buyer counterclaimed for inferior quality of coal, admitting evidence touching quality of coal taken from seller's mine held not error.
5. Interest. — Generally, in absence of agreement, open unliquidated account does not bear interest.
6. Interest. — Where seller did not ask for instruction submitting issue whether party signing note had authority to bind buyer, refusal to determine that seller was entitled to interest held proper; action being on open account.
Refusal to determine as matter of law that seller was entitled to interest from the date on which the alleged note was executed was proper, since the action was on an open account and the pleadings and evidence made issue as to whether party signing note had authority to bind buyer.
Appeals from Breathitt Circuit Court.
W.G. DEARING for plaintiff.
HENRY L. SPENCER for defendant.
Affirming.
In March, 1925, Edward L. Gambill and Fred T. Hurt, partners doing business under the firm name of the Lick Branch Coal Company, instituted this action in the Breathitt circuit court against the Scanlon-Thompson Coal Company, a corporation engaged in business in Louisville, Ky., seeking to recover the sum of $1,000 for the balance of the contract price of coal sold and delivered to the latter. From a judgment in favor of plaintiffs, appeal was prosecuted, and by an opinion found in Scanlon-Thompson Coal Co. v. Gambill, 221 Ky. 819, 299 S.W. 978, the lower court's judgment was reversed for a new trial in conformity with that opinion.
After the case was remanded, additional proof was heard and a trial again resulted in a verdict and judgment in favor of plaintiffs for the sum of $1,000, the amount prayed for in the petition, and defendant has again appealed. There is no controversy over the quantity or contract price of the coal furnished by appellees to appellant, but by answer and counterclaim, it is alleged that appellant has been damaged by reason of failure of seven carloads of the coal to measure up to certain standards fixed by the contract. Appellees by reply denied that the seven carloads of coal in controversy were of inferior quality or that it failed to come up to the standard provided for by the contract, and further pleaded certain acts of appellant in estoppel of its rights to assert any claim for damages because of the alleged inferiority of the coal.
In the opinion on former appeal it was pointed out that appellant's attention had been called to the quality of two of the seven carloads of coal before it was unloaded. Evidence offered on behalf of appellant established that a cursory inspection of the coal while it was yet in the cars revealed that it did not come up to the specifications provided for in the contract between parties, but despite this knowledge, appellant unloaded the coal. It was pointed out in so far as the two carloads were concerned, this case could not be distinguished from that of Brown v. Price, 207 Ky. 8, 268 S.W. 590, where, in disposing of a similar question, it was held that the purchaser was liable for the contract price of the coal and was not entitled to damages because of its inferior quality. As to the other five carloads, the opinion continuing said:
"As to the other five carloads of coal, however, the evidence fails to show that the appellant had any opportunity to inspect it before it had been so placed in the yards of the Louisville school board as to be impossible of removal; which being true, the appellant was entitled to make what claim it could in this action concerning its defective quality."
On second trial, considerable proof was heard on the question as to the quality of the five carloads of coal and also as to whether appellant's attention was called to it and whether it had opportunity to and did inspect the coal. Appellant had resold the coal in controversy to the Louisville school board and the five carloads had been placed on a siding at or near the school buildings where the coal was to be delivered. There is evidence that J.G. Duncan, an employee of the school board, and L.M. Smith, an employee of appellant, did inspect the five carloads of coal. Mr. Duncan testified that he called Mr. Smith and that they together went over the five cars. He told Smith that the coal was of inferior quality, and Smith agreed that it did not come up to the quality of coal which had theretofore been furnished appellant by appellees and in turn delivered by appellant to the school board. They took samples of coal from the various cars for the purpose of having a chemist or analyst make an analysis. Duncan testified positively that he notified Smith that he would not receive the coal for the board. In this he was corroborated by William Bryant. Smith testified that he saw the coal and that it was inferior in quality and that he was present when Duncan took samples to furnish the analyst.
Question is made as to whether Smith had the authority to bind appellant in receiving coal and whether notice to him that the coal would not be received because of its inferiority would be notice to appellant. There is a sharp conflict in evidence on this question. Smith testified that his duties were somewhat in the nature of a "straw boss" with supervision over employees in unloading coal, but that he had no authority to reject coal and it was not his duty to notify his employer of complaints with reference to the quality of the coal. The evidence of officers and employees of appellant is to the effect that Smith's only duties were to supervise the unloading of coal. Mr. Duncan testified that he told Mr. Smith that the school board would not accept the coal; that after the coal had been unloaded he had a talk with Mr. Thompson. In the evidence of Mr. Duncan, we find the following questions and answers:
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Waterbury v. Waterbury
...is applicable here, that interest will not be allowed, nor is it recoverable on an unliquidated claim. Scanlon-Thompson Coal Co. v. Lick Branch Coal Co., 243 Ky. 100, 47 S.W. (2d) 1007, and cases cited. It is also that "interest is not generally allowed upon partnership accounts until after......